Divorce

Family Law: Divorce

D-I-V-O-R-C-E. Sometimes spelling it is easier than saying it. Hopefully, the split was mutual and admirable, there were no property or kids to split, you and your ex agree on everything and can get an uncontested divorce. But chances are, emotions are running high, and often decisions are made and words are said in the heat of the moment that turn two adults into children at the play ground. We get that too, and we can help.

What is the difference between contested and uncontested?

Legally, not much. An uncontested divorce is like we said above: you and your soon-to-be-ex-spouse are parting ways on relatively good terms, you have agreed to how your personal and real property will be split between the two of you, and you have no children for whom you must make custody arrangements. These tend to go smoothly, require some paperwork, and within a few months of filing you are divorced.

A contested divorce is essentially one where issues need to be decided by a judge. These issues might include how to split property, who gets custody of the child(ren), visitation rights and schedules, alimony and child support, and any other issue that can’t be agreed upon.

It’s important to remember that going through a divorce is going through a negotiation. Details must be hammered out about all these issues, but they don’t all have to go before a judge. The more details you can work out early, the less work, time, and money it will take to get divorced. Even some issues that require a judge’s approval, such as custody, child support, and visitation schedules, can be agreed upon by the parties and approved by the judge instead of being hashed out in court and left to the judge to decide.

Can an attorney represent both spouses if they all agree?

In divorce, even if uncontested, both spouses should never be represented by the same attorney. This isn’t to say that both spouses are required to have their own attorney. However, much like a regular lawsuit, there are two parties. Instead of a “Plaintiff” and a “Defendant”, though, divorce suits have a “Petitioner” and a “Respondent”. The Petitioner is the party who actually files for divorce, and the Respondent is the other spouse. Legally it doesn’t really matter which spouse files. But what does matter is that if you and your spouse use an attorney to file, the attorney will represent the Petitioner, and the Respondent will be unrepresented unless they hire their own attorney.

In an uncontested divorce this shouldn’t be too much of a problem as everything is generally agreed upon. Further, us attorneys have certain ethical duties in how we work with unrepresented parties in legal matters, including being truthful (without divulging privileged information) and not trying to trick or trap the other party. However, it’s important to remember that sometimes a divorce may start as uncontested, and end up contested. In such an event, the attorney will either withdraw, or more likely, will end up siding with the party they represent (the Petitioner). Therefore, take care when going through an uncontested divorce as a Respondent. And know that you always have the right to hire your own attorney, even in uncontested matters.

What are the grounds for filing for divorce in Georgia?

There are numerous legal reasons or grounds for filing. These include mental incapacity or impotency at the time of marriage, marriage obtained by force, duress, fraud or menace, adultery, or willful and continued desertion by either party for the term of a year, among many others. (To see the full list, look at O.C.G.A. § 19-5-3. Generally, though, a lot of divorces are based on the grounds of the marriage being irretrievably broken, or as you might have heard it, “irreconcilable differences”. This is a catchall category for pretty much any reason that doesn’t fit within the others listed in the Georgia Code, and essentially means your marriage is broken, you can’t fix it, and the only reasonable option left is divorce.

What are the effects of adultery on divorce?

Besides being its own grounds for a Georgia divorce, adultery can have severe effects on the parties. Primarily, one spouse’s adultery can act as a bar to that spouse receiving alimony if otherwise eligible. However, there are times when such a bar can be waived by the other spouse. Such waiver may occur if the couple has intercourse with each other after the adultery occurred, as the courts tend to view this as forgiving the adultery for alimony purposes.

How does custody, child support, and visitation work?

We’ve created a separate page for these issues as they can be quite involved. Use the navigation menu at the top of this page to get there, or CLICK HERE.